Investor-State Dispute Settlement (“ISDS”) has been criticized for the lack of an appellate mechanism and the inconsistency and unpredictability of certain arbitration awards that are rendered. Opponents of ISDS claim that, as decisions that may ultimately affect public interests are at stake, it is undesirable that wrong decisions taken by arbitral tribunals cannot be appealed. […]
Investor-State Arbitration: Who Qualifies as a Foreign Investor?
The simplest investment protections to understand, as well as the widest, are usually provided in Bilateral Investment Treaties (“BIT’s”). Protection via BIT’s is not granted to every foreign entity that is impacted by the measures of a host State of investment, however. In order to enjoy protection under BIT’s, business actors must qualify as investors […]
Valuation Date of Expropriated Investment in Investor-State Arbitration
The valuation date of an expropriated investment represents a crucial factor in assessing the amount of compensation to be paid in investor-State arbitrations, as the value of investments may change dramatically over the course of time. Arbitral tribunals are keenly aware that the value of investments change over time. For example, the Iran-US Claims Tribunal […]
The Salini Test in ICSID Arbitration
Article 25(1) of the ICSID Convention states that “[t]he jurisdiction of the Centre shall extend to any legal dispute arising directly out of an investment”. The manner in which tribunals have applied this provision has gradually evolved and has been subject to considerable debate. The Salini Test has been at the heart of this debate. […]
Economic Sanctions in International Arbitration
Issues concerning economic sanctions in international arbitration frequently arise. Economic sanctions are a commonly-used tool of foreign policy which can have a significant impact on the performance of parties’ contractual rights and obligations. While there are many ways in which economic sanctions may interfere with international arbitration, we will focus on the issue of the […]